5.  The applicants were born in 1963, 1965, 1947, 1952 and 1946 respectively. The first and second applicants live in İzmir, the third and fourth applicants live in Mardin and the fifth applicant lives in Diyarbakır.
6.  The facts of the case as submitted by the parties, and as they appear from the documents submitted by them, may be summarised as follows.
7.  Gülbahar Özer is the mother of Sibel Sartık, Yusuf Özer is the father of Nergiz Özer, Halil Esen is the father of Zerga Esen, Hüseyin Esen is the father of Zühal Esen, and Abdurrahman Çınar is the father of Hamdullah Çınar.
8.  Sibel Sartık, who was 24, and her cousin Nergiz Özer, who was 15, were living in İzmir and working as a singer and a textile worker respectively. On 17 December 2004 they left their homes in İzmir. Sibel Sartık told her family that she was going to visit her three children who were living with her ex-husband in the city of Siirt.
9.  Zühal Esen and Zerga Esen were 16 and 13 years old respectively and were working on farms in Manisa. On 20 December 2004 they left their homes and told their families that they were going shopping.
10.  Hamdullah Çınar was 22 years old and was working on a building site in Ankara. The last time his family heard from him was towards the end of December 2004.
11.  On 19 January 2005 Sibel, Nergiz, Zuhal, Zerga and Hamdullah were killed by soldiers in a place one and a half kilometres to the north of a small village in south-east Turkey.
12.  According to a report prepared on 20 January 2005 by twenty-six soldiers who had taken part in the incident, at about 6.00 p.m. on 19 January 2005 special police teams who had observed with their night vision cameras nine or ten persons in an area near Cudi mountain, informed the military about the presence of the group.
13.  A number of units of soldiers were then dispatched to the area at 6.30 p.m. where they came under fire from members of the group. The soldiers retreated to a safer area and issued verbal warnings, in Turkish and Kurdish, and asked members of the group to surrender. When their calls for surrender were rejected and they came under more fire, the soldiers blocked all exit routes and opened mortar fire on those who tried to run away. Both sides also threw hand grenades at each other during the clash.
14.  The following morning the soldiers found the bodies of the applicants’ five children and a number of weapons and food stocks near to them. There were no other casualties and none of the soldiers suffered any injuries. On arrival of a different unit of soldiers responsible for crime scene investigations, the soldiers who had taken part in the operation left the area.
15.  Soldiers responsible for crime scene investigations photographed the bodies and the weapons next to the bodies, and drew up sketches showing the position of the bodies. It was stated in a report drawn up by the investigating soldiers that, “as it was raining the weapons [found next to the bodies] were wet and muddy and [the investigators] have thus been unable to carry out fingerprint analysis on the weapons”. Five automatic rifles found next to the bodies, together with a number of spent bullet cartridges found in the area, were taken away as evidence.
16.  With the help of a number of villagers brought to the area by soldiers from the nearby village, the bodies of the applicants’ children were brought to the Şırnak State Hospital where they were examined by a doctor and a prosecutor at midday on 20 January 2005. It appears from a number of reports drawn up the same day that the prosecutor had been told by members of the security forces that the place where the five persons had been killed was not safe for the prosecutor to go and the prosecutor had asked the soldiers to bring the bodies to Şırnak.
17.  As there were no identity cards on them, the prosecutor was unable to identify the five deceased. In his report the prosecutor, who referred to the five deceased as “PKK terrorists killed in a clash with the security forces” and instructed the soldiers to search for the remaining “terrorists” who had managed to escape, stated that “anti-terrorism experts and crime-scene investigators from the gendarmerie had carried out the necessary examinations and searched for evidence at the place of the incident”.
18.  At the recommendation of the doctor who examined the bodies and who concluded that the applicants’ five children had died as a result of loss of blood and damage to their internal organs caused by firearms, the prosecutor decided that there was no need to carry out a classic autopsy.
19.  A decision was also taken to destroy some of the clothes the deceased had been wearing.
20.  On 22 January 2005 the applicants and their relatives formally identified the bodies of the five deceased. In official identification documents the prosecutor again referred to the applicants’ five children as “members of the PKK killed in an armed clash with members of the military”.
21.  On 25 January 2005 the applicants’ lawyers asked the Şırnak prosecutor for copies of documents from the investigation file. They were provided with the above-mentioned post mortem report, documents relating to the formal identification of the bodies, documents for the release of some of the bodies, and copies of the identity cards of some of the applicants. None of the documents drawn up by members of the military were handed over to the applicants.
22.  The Human Rights Association of Turkey released a report on 27 January 2005 on the killing of the applicants’ five children. It was stated in the report that the authorities had refused to hand over the bodies of Nergiz Özer and Sibel Sartık to their families and had buried them in an undisclosed location[1].
23.  The report, drawn up after having interviewed a number of villagers living near the place where the applicants’ five children were killed by the soldiers, the prosecutor in charge of the investigation, and the families of the deceased, criticises the prosecutor’s failure to go to the place of the incident and the collection of the evidence by the soldiers. The report also criticises the fact that the documents drawn up by the soldiers in the aftermath of the incidents had not been sent to the prosecutor in charge. The report concludes it to be highly probable that the applicants’ five children had run away from their homes in order to join the PKK, and had then been killed by the soldiers even though they were unarmed.
24.  On 31 January 2005 an army major sent to the prosecutor the documents drawn up by the soldiers after the killings (see paragraphs 12-16 above).
25.  On 1 February 2005 the applicants Gülbahar Özer and Yusuf Özer, with the assistance of their lawyers, lodged a formal complaint against the soldiers responsible for the killing of the five persons. In their petition the two applicants asked the prosecutor to carry out an investigation and prosecute those responsible for the killings. They invited the prosecutor to, inter alia, question the soldiers and the residents of the nearby villages, and to examine whether their children were likely to have been able to handle the weapons allegedly found next to their bodies, given their young age and their lack of training in firearms. They also asked the prosecutor to obtain swabs from the hands of the deceased with a view to assessing whether they had indeed handled the weapons. They further asked the prosecutor to recall the items of evidence which had been sent to the gendarmerie’s forensic laboratories, and send them instead to the independent and impartial Forensic Medicine Institute.
26.  The prosecutor started an investigation on 23 February 2005 against the applicants’ five dead children, as well as against “PKK members”, for the offence of undermining the territorial integrity of Turkey.
27.  On 23 February 2005 the applicants Gülbahar Özer and Yusuf Özer were questioned by a police officer in relation to their complaints to the prosecutor. Both applicants told the police officer that they wanted those who had killed their children to be found and punished.
28.  According to the report of the ballistic examination conducted by the gendarmerie, twenty-one of the empty bullet cases found in the area had been discharged from the five rifles found next to the bodies of the applicants’ children.
29.  In a report of 13 April 2005 a police firearms expert concluded that it would be possible for children from the age of 11, with one to two hours’ training, to use the weapons found next to the bodies of the five deceased.
30.  On 7 April 2005 the police forensic laboratory examined a number of spent bullet cases found in the area. On 25 May 2005 an expert examined the thermal camera footage recorded by the police special teams on the day of the incident, and confirmed the sighting of seven persons in the footage.
31.  On 26 May 2005 the Şırnak prosecutor visited the area and recovered forty-two spent bullet cases at the spot where the bodies had been found. He also found an unspecified number of bullets, used in his opinion by the soldiers, in two places 50 and 150 metres away from the place where the bodies had been found. The prosecutor also questioned five villagers who were living in a nearby village and who had assisted the soldiers in recovering the bodies on 20 January 2005.
32.  The weapons and ammunition found in the area by the prosecutor were examined by the police and gendarmerie forensic laboratories and their findings were recorded in reports drawn up on 10 August and 23 September 2005.
33.  On 7 and 9 February 2006 a prosecutor and a gendarme non-commissioned officer questioned fifteen of the twenty-six soldiers who had taken part in the operation (see paragraph 33 above). The soldiers were questioned as “eyewitnesses”. The non-commissioned officer was entrusted the task of taking down the minutes of the soldiers’ questioning “because of the nature and the urgency of the investigation”. The soldiers’ names were not written down in the statements and they were referred to by their military identification numbers.
34.  In the fifteen identical statements the soldiers were quoted as having stated that the PKK members had ignored their warnings to surrender, which had been made in Turkish and Kurdish. Instead, the PKK members had opened fire on them and they had returned fire. The clash had lasted for approximately two hours. They also stated that, although they had initially seen a group of approximately eight to ten persons with their night vision cameras, they did not know what had happened to the remaining ones other than the five killed by them.
35.  On 6 March 2006 the Şırnak prosecutor decided not to prosecute any of the soldiers responsible for the killing of the applicants’ five children. In his decision the prosecutor summarised the documents in the investigation file, and held, inter alia, the following: “Members of the security forces issued warnings [to the group] to surrender. However, [the group] responded by firing on the soldiers. Those found dead at the end of the clash had been armed. According to the examination of the place of the incident the following morning, as well as according to the examinations subsequently conducted by the prosecution service and the forensic authorities, the spent bullet cases had been discharged from the weapons which had been in working order. There is no evidence or eyewitness statements to suggest that the soldiers had opened fire first.” The prosecutor also mentioned in his decision that, according to the military reports the weapons found next to the bodies had been wet and muddy and it had thus not been possible to look for fingerprints on them.
36.  It also appears from the prosecutor’s decision that on the day after the killings a TV channel reported, based on information obtained from PKK sources, that the applicants’ five children had not been PKK militants, but that they had gone to the area unarmed to meet with PKK members. Nevertheless, the prosecutor considered in his decision that the deceased had been PKK members who had been trying to “undermine the territorial integrity of Turkey” and that the soldiers had carried out their duties by killing them.
37.  On 28 March 2006 the two applicants lodged an objection against the prosecutor’s decision. In their objection they denied that their children had been PKK members. They alleged that their children had been unarmed at the time of the killings. In this connection they pointed to the failure to obtain swabs from the hands of the deceased. The two applicants also criticised the investigating authorities’ failure to question the soldiers until thirteen months after the killings and the presence of the gendarme officer when the prosecutor had been questioning the soldiers. They pointed out that the statements made by these soldiers were identical as a result of the psychological pressure exerted on them by the gendarme officer present during their questioning.
38.  On 12 April 2006 the objection lodged by the two applicants was rejected by the Siirt Assize Court which considered that all the necessary steps had been taken in the investigation. The Assize Court considered that the right to life guaranteed in the European Convention on Human Rights was not absolute. If the resort to use of force becomes absolutely necessary in order to protect from unlawful violence, then there would be no deprivation of the right to life. On the basis of the investigation, the “terrorists” had been killed by the soldiers who had had to resort to the use of firearms in order to protect themselves from unlawful violence. There was no evidence to the contrary.
39.  No mention was made in the Assize Court’s decision about the applicants’ complaints concerning the failure to obtain swabs from the hands of the deceased or the failure to question the soldiers until thirteen months after the killings and in the presence of the gendarme officer.
40.  The decision of the Siirt Assize Court was communicated to the applicants on 28 April 2006.
41.  Following the communication of the application to the respondent Government, on 18 January 2011 the İzmir prosecutor took a statement from the applicant Ms Gülbahar Özer. The applicant repeated her allegations about the unlawful killing of her daughter Sibel Sartık.
42.  The Şırnak prosecutor, having regard to the statement taken from Ms Özer on 18 January 2011 by his counterpart in İzmir, took another decision not to prosecute anyone in connection with the killing. The prosecutor considered that there was no new evidence to lead to a different decision. The applicant’s objection against the prosecutor’s decision was rejected by the Siirt Assize Court on 10 February 2011.